2
The decision of the responsible authority in relation to permit
application no. P905/2012 is affirmed. The permit application is
refused.

S. R. Cimino

Member

APPEARANCES

For Banyule Management Pty Ltd

Mr T. Ludeman, Town Planner.

Witnesses

Mr S. Petrakis, Project Architect.

Ms H. Hellman, Landscape Architect,
Tract.

Mr D. Simonsen, Consulting Arborist,
Treemap Aboriculture.

For Responsible Authority

Ms T. Cincotta, Solicitor, Best
Hooper.

Witnesses

Mr R. Milner, Town Planner, 10 Consulting
Group.

Mr G. Lewis, Consulting Arborist, Stem
Arboriculture.

Mr L. Kern, Ecologist, Practical Ecology
Pty Ltd.

For Friends of Banyule Inc.

Mr Dennis O'Connell, Secretary.

For Heidelberg Historical Society Inc.

Mr Graham Thorley, Committee Member.

For Ms Claudia Trasancos and Mr Ed
Kolodziejczk

Ms Claudia Trasancos and Mr Ed
Kolodziejczk in person.

For Mr Steven James Gilbert

Mr Steven James Gilbert in person.

For Ms Sarah Wood

Ms Sarah Wood in person.

For Ms Jane Crone, Mr Kevin Biaggini, Mr
Maxwell Congdon

Ms Jane Crone in person.

For Mr Leon Jules Frederick Le
Rossignol

Mr Leon Jules Frederick Le Rossignol in
person.

Ms Jeni Tippet, Ms Olivia Clements, Ms
Rosemary Simpson

No appearance

INFORMATION

Description of Proposal

The proposal involves the retention of an historic
homestead, development of three townhouses over the southern part
of the land and the subdivision of the land into four lots; one
containing the homestead, the others the new townhouses. Vegetation
removal is also proposed.

Nature of Proceeding

Application under Section 77 of
thePlanning and Environment Act1987.

Zone and Overlays

Residential 1 Zone [R1Z]

Environmental Significance Overlay -
Schedule 4 [ESO4]

Significant Landscape Overlay - Schedule 1
[SLO1]

Heritage Overlay - Schedule 13 [HO13]

Permit Requirements

Clause 32.01-2: Subdivision of land in
R1Z

Clause 32.01-4: Construct more than one
dwelling on a lot within R1Z

Clause 42.01-2; Construction of buildings
and works and subdivision of land in ESO4.

Clause 42.03-2: Construct buildings and
works and removal of vegetation specified in the schedule

The subject land comprises an irregular
lot with a frontage of about 137.6 metres and overall area of about
9085 square metres. A large historic homestead known as Banyule
House occupies the land. Contextually the land is located within an
established residential area with properties to the north, west and
south occupied by dwellings. The land is set on sloping terrain, at
the top of an escarpment overlooking the Banyule Flats and Yarra
River corridor to the east.

1
The matter relates to an application by Banyule Management Pty Ltd
under Section 77 of the Planning and Environment Act 1987 to review
the Banyule City Council's decision to refuse a permit for the
construction of three dwellings on the land and subdivision on land
known as 60 Buckingham Drive Heidelberg. Vegetation removal is also
proposed.

2
The subject land comprises a large irregular shaped site measuring
just over 9000 square metres. A large historic homestead known as
Banyule House occupies the land. Surrounded to the north, south and
west by suburban residential development, the land's east boundary
sits at the top of an escarpment with the Banyule Flats and the
Yarra River Corridor to the east.

3
The Council received 37 objections and a petition opposing the
grant of the permit. The Council decided to refuse the permit on 12
grounds[2].

4
The grounds of refusal assert that the strategic context of the
land does not support the scale and intensity of development, the
design of the proposal will have an adverse impact on the amenity
of the area and it is incompatible with the neighbourhood
character. The extent of vegetation removal and space for
landscaping are considered inappropriate. The grounds also
raise concerns about the car parking layout and drainage matters.
Further, the Council's grounds assert that the proposal fails to
achieve satisfactory compliance with Clause 55.

5
The respondent objectors support the Council's reasons for refusing
the proposal; however, they also raise other concerns. They say
that refusal of the permit is also justified because the proposal
will have an adverse impact on the heritage significance of
'Banyule House'. They also raise concerns about the impact on
amenity including visual bulk, overlooking, overshadowing,
traffic and parking.

6
Banyule Management's application seeks an order to set aside the
Council's decision and a direction that a permit be granted for the
proposal. In doing so, Banyule Management relies on amended plans
substituted as the application plans at the commencement of the
hearing. Banyule Management submits that the proposed development
will not have an adverse impact on the significance of Banyule
House demonstrated by the issue of a permit by Heritage Victoria.
It also submits that the proposal responds appropriately to both
the opportunities and constraints presented by the subject land,
with respect to its environmental conditions and context, presents
an acceptable interface with both the Yarra River Corridor and
neighbouring residential properties and represents a satisfactory
response to the neighbourhood character. It maintains that the
design allows for the retention of trees, the proposal will not
result in unreasonable impacts on amenity.

7
The issues in this case are:

Can additional dwellings be constructed on the land having
regard to the context?

Does the proposal respond appropriately to the land's
environmental constraints?

Is the proposed development respectful of the neighbourhood
character?

Will the proposed development result in unreasonable impacts on
the amenity of neighbouring residential properties and the area
generally?

8
I must decide if a permit should be granted and if so, on what
conditions. Having considered the submissions and evidence, the
details of the proposal, the relevant matters under the planning
scheme and legislation, I conclude that a permit should not be
granted. The subject land has capacity to accommodate additional
dwellings having regard to it physical attributes and strategic
context. However, the land is subject to constraints that temper
its redevelopment potential. The proposal does not respond
appropriately to its immediate context, namely the interface with
the river corridor and the immediate neighbouring property to the
south. While most potential amenity impacts are managed
appropriately, or could be managed through conditions, the visual
bulk presented to the secluded private open space of 58 Buckingham
Street is intrusive and inappropriate. I set out my reasons
below.

Background -

The subject land and locality:

9
The subject land fronts the east side of Buckingham Drive, directly
opposite Dorset Avenue. The land is irregular in shape, with a
frontage of 137.6 metres, a maximum depth of about 85 metres and
overall area of about 9085 square metres. The land is on sloping
terrain, falling by about 12 metres from north to south and at the
top of an escarpment overlooking Banyule Swamp, the wider Banyule
Flats and Yarra River Corridor located to the east.

10 'Banyule
House', a large historic dwelling constructed in the mid 1800's and
listed on the Victorian Heritage Register, occupies the central
part of the land. Part of the land, between the dwelling and the
southern boundary, was developed and once used as a car park
associated with a former use of the building as an art gallery
during the mid 1970s. Bluestone and asphalt associated with the car
park remain, but vegetation over this part of the land including
native trees, remains while understorey vegetation seeks to
re-establish. A tennis court exists in the area to the north of the
dwelling.

11
Contextually the land is located within an established residential
area. Single and double storey dwellings, ranging from the post
World War 2 period to late 20th century typically occupy
properties in Buckingham Drive and the wider area.

The proposal:

12 The
proposal involves the construction of three townhouses, in a
detached dwelling layout, between the existing homestead and the
southern boundary. The existing homestead is retained and not
subject to any works.

13 The site
layout sees Unit 1 with direct frontage to Buckingham Drive, with a
front setback of about 6.3 metres. Units 2 and 3 are located to the
rear of Unit 1. They are adjacent to each other along the east
boundary with an outlook towards the Banyule Flats. The townhouses
typically provide for open plan living areas at the lower level and
three bedrooms.

14 Open space
is in the form of courtyards.

15 A double
garage is provided for each townhouse. The garages for Units 2 and
3 are within basements. Access to the garages is from a single
crossover point to Buckingham Drive.

16 The
dwellings present a contemporary design style.

17 To
facilitate the development, a number of trees are to be
removed.

18 The
development is to be subdivided into four lots, one containing the
existing homestead, the other three containing the proposed
townhouses. The townhouse lots range in size from about 570 square
metres to 625 square metres. The driveways and access to dwellings
is from common property. The lot containing the existing homestead
would have an area of at least 6500 square metres.

20 Under the
provisions for the R1Z, a permit is required to construct more than
one dwelling on a lot. For a permit to be issued, a proposal must
meet all the objectives at Clause 55. A permit is also required
under the R1Z for the subdivision of land.

21 Under the
provisions of ESO4, a permit is required to construct buildings and
works within the critical root zone (as defined in ESO4) of
significant trees on the land, to remove, destroy or lop any
significant tree or area of vegetation specified in the table to
this clause and for subdivision. There are two significant trees on
the land, a Bunya Bunya pine located near the existing driveway and
a Deodar Cedar. The proposal involves works in the vicinity of the
Bunya Bunya pine. Relevant matters to consider include the
statement of environmental significance, environmental objectives
to be achieved and the specific decision guidelines in the
schedule.

22 Under the
provisions of the SLO1, a permit is required for the construction
of the proposed development as the wall height exceeds 8 metres at
two points[3] and the removal of
native vegetation. Native trees are to be removed. Relevant matters
to consider include the statement of nature and key elements of the
landscape, the landscape character objectives to be achieved and
specific decision guidelines set out in the schedule.

23 The land
is also covered by the HO13. Under the provisions of this overlay,
a permit is usually required to construct building and works and to
subdivide land. However, under Clause 43.01-2, no permit is
required in this case under this overlay as the land is a heritage
place included on the Victorian Heritage Register.

24 Under
Clause 52.17, a permit is required to remove native vegetation
given the overall size of the land. In doing so, consideration must
be given to Victoria's Native Vegetation Management - A Framework
for Action[NVF] applying the principles of avoiding and/or
minimising the removal of native vegetation, and if this cannot be
achieved, the provision of appropriate offsets.

25 General
decision guidelines are at Clause 65. These require consideration
to be given to a range of matters including planning policy, the
purpose of the zone and overlays that apply, orderly planning,
amenity and various matters relating to subdivision as set out in
Clause 65.02.

Consideration of the issues:

Can additional dwellings be constructed on the land having
regard to the context?

26 A
threshold issue in this case is whether the land can accommodate
any additional dwellings at all. While the Council expresses the
view that the proposed development is excessive for the land and it
has not responded appropriately to the land's context and
constraints, it does not go as far as saying that no additional
dwellings can be developed on the subject land. While not
supporting the proposal, Mr Milner, a town planner called on behalf
of the Council, did not express the view that there is no scope to
allow additional dwellings on the land. On examining the context
and attributes of the land, Mr Milner concludes that the subject
land is capable of 'careful infill and more efficient use of its
grounds'[4].

27 The
respondent objectors hold a different view. In particular, they say
that the subject land is unique and supports a heritage building of
state and local importance. They say that any development on the
land will detract from the setting within which the historic
homestead sits, and will detract from its appearance from various
vantage points including the adjacent river corridor and Buckingham
Street. They maintain that any development will change the context
in which the homestead sits to such an extent, that it will detract
from its historic significance.

28 The
subject land presents as a very large single lot of over 9000
square metres. There is no question that the land is much larger
than the residential properties that surround it which are more
akin to those found in residential suburbia. The mere size of the
land is, however, only one factor to take into account. In this
case, the historic homestead is positioned toward the middle of the
land. This means that a substantial vacant area exists to the
south. On face value, this area offers some opportunity for
development. The land is set on sloping terrain, and at the edge of
an escarpment to the river corridor. The slope of the terrain on
the land itself is moderate and can be managed. Given its location
within an existing urban area, infrastructure is available to the
land. While the grounds of refusal assert that there are drainage
difficulties, the Council did not pursue its concerns in presenting
its submissions.

29 All of
these factors support the land's potential to accommodate
additional development.

30 There is
no doubt, however, that the land is subject to other factors that
may constrain or temper its redevelopment potential. The historic
significance of the homestead and the protection of its
significance is one of those.

31 However,
in this case, Heritage Victoria has granted a permit which allows
the proposed development to proceed. The granting of that permit
means that the relevant authority finds the proposal to be
acceptable on heritage grounds. The planning scheme's provisions
say that no permit is required under the Heritage Overlay in this
case. Heritage matters have been considered under the relevant
legislation and found acceptable by the determining body, Heritage
Victoria. As such, matters relating to the impact on the historic
significance of the homestead are not open to my consideration. It
is on this basis that the Council does not pursue heritage issues
in this case, albeit that it opposed the application to Heritage
Victoria.

32 The
Heidelberg Historical Society submits that heritage considerations
remain relevant to my decision given the objectives of the Planning
and Environment Act 1987, various policies in the scheme and the
provisions of Clause 65. This raises the question of law, namely
whether heritage matters are before me. For reasons given orally at
the hearing, the objectives of the Act, the policies of the
planning scheme and the decision guidelines at Clause 65 need to be
considered, as appropriate, having regard to the provisions of the
planning scheme that trigger the need for a permit. This accords
with what is commonly known as the National Trust principle set
down by the Supreme Court[5]. I
appreciate that the Historical Society and other respondents, such
as Ms Crone, do not agree with Heritage Victoria's decision,
whether it be the grant of the permit and whether the conditions go
far enough in requiring funds to upgrade the homestead. However,
Heritage Victoria's decision is not the subject of this review, nor
can I change aspects of its decision such as increasing the amount
of money to be spent on repairs to the homestead over and above
what is specified in the permit under theHeritage Act 1995. Put
simply, the issue of a permit by Heritage Victoria is sufficient to
satisfy heritage matters.

33 The land's
context adjacent to the Yarra River Corridor, particularly its
elevation at the top of an escarpment is another possible
constraint given the potential for the observation of development
from long-range views. The contribution that existing trees
and vegetation make to the environmental and landscape values of
the area and neighbourhood is another factor that requires
consideration. Further, the land is located within an existing
residential neighbourhood. As such, any design response must
respond to and respect the neighbourhood character as well as
amenity. All these factors 'temper' the land's development
potential compared to another site that is free of such
constraints.

34 The above
analysis relates to the physical context. However, a decision must
also have regard to the strategic context that applies. Various
policies and strategic outcomes envisaged under the planning scheme
must be weighed and balanced to achieve an acceptable outcome. The
web of policies and strategies that apply in this case is quite
complex requiring the balancing of competing interests, namely
development opportunity against environmental values, character and
amenity.

35 State
policy at Clauses 11 and 16 clearly encourages the most intense
housing development close to activity centres, strategic
redevelopment sites and near public transport. The subject land
does not have such a strategic context. However, the planning
scheme's housing policies, both within the State and local
sections, also call for development that adds to choice, makes
better use of existing infrastructure and is energy efficient. The
proposal contributes to these policy outcomes.

36 Under the
'Residential Areas Framework' at Clause 21.06, the subject land is
within a 'Limited' area. The 'Limited' classification typically
applies to land of heritage significance and/or presents
environmental constraints. In relation to 'Limited' areas, the MSS
says:

These areas support single dwellings with some
limited opportunity for medium density housing, if designed to
respect and be sensitive to the valued attributes of the existing
neighbourhood character.

37 The
decision to include the subject land within the 'Limited' area
seems quite targeted. However, as stated above, properties in this
area can provide 'some limited opportunity for medium density
housing'.

38 The land
is not within easy walking distance of an activity centre or public
transport. This is a factor that may weigh against the intensity of
development that may be appropriate, but in most urban areas, will
rarely be a reason for not allowing modest increases in density,
bearing in mind that outcomes such as the provision of diverse
dwelling types at a range of densities is part of the purpose of
the R1Z

39 Further,
given the land's interface with the river corridor, state policies,
such as those at Clauses 11.04-8 and 12.04 come into play. The
policies in these clauses clearly call for the protection of
significant river corridors. Strategies at Clause 11.04-8
include:

Ensure development responds to and respects the
significant environmental, conservation, cultural, aesthetic, open
space, recreation and tourism assets of the Yarra River and
Maribyrnong River corridors.

Ensure new development is sensitively designed
and sited to maintain and enhance environmental assets, significant
views and the landscape along the Yarra River and Maribyrnong River
corridors.

40
Consideration must also be given to the role that vegetation plays
in bio diversity and the area's ecological functions.

41 My
conclusion is that the subject land is not in an area where policy
outcomes supporting urban consolidation and provision of more
housing outweigh those which support the protection and enhancement
of the natural environment. The land is not in an area where the
development opportunity is to be maximised or optimised. Rather, a
restrained approach which places the balance in favour of achieving
an appropriate environmental and character outcomes is warranted
here. However, like Mr Milner, I am unable to conclude that the
only way for this to be achieved is by maintaining the 'status quo'
on the land as far as additional development goes. On balance, I
conclude policy does not inhibit opportunity for some additional
development on this land, provided that the design response clearly
demonstrates an outcome that responds to the environmental context
and neighbourhood character in a sensitive way.

Does the proposal respond appropriately to the land's
environmental constraints?

42 The land
presents three areas of environmental sensitivity. The first
relates the land's relationship with the Yarra River Corridor. The
second relates to the impact on the ecological value of the land
given the loss of trees and understorey planting over the area
where the townhouses are proposed. The third relates to the impact
of tree removal on the landscape quality of the land. Although I
have identified three areas of environmental sensitivity, to some
extent they are interrelated.

43 The first
impact to consider is that on the Yarra River Corridor.
Contextually the land is located at the top of an escarpment which
has a direct interface with the Banyule Flats in the river
corridor. The 'flats' is a broad floodplain, which supports large
expanses of open space supporting vegetation, a large billabong and
used for both passive and active recreational purposes by the
community. There is a joint cycling/pedestrian pathway running
immediately to the east of the subject land at the bottom of the
escarpment.

44 Banyule
Management contends that the proposed development has been designed
appropriately having regard to its interface with the river
corridor. It says that the proposal would appear as two
detached dwellings which would be viewed at some distance from the
surrounding open space/corridor area. It submits that in such
context, the dwellings would not appear as a dominant visual
element, but rather, would be seen as part of the urban development
that runs along the top of the escarpment while views of the
homestead would not be impeded.

45 A permit
is required under both the ESO4 and SLO1 for this development
proposal.

46 While
Banyule Management contends that a permit is not required under the
ESO4, this view does not take into account that subdivision is
proposed. The schedule does not say that no permit is required for
subdivision. However, it would be fair to say that the purposes of
ESO4 is fundamentally directed toward the protection of the
significant trees on the land, that is, the Bunya Bunya Pine and
the cedar. The evidence of both arborists is that the proposed
development, will not have an adverse impact on those trees. The
other vegetation on the land is not listed as significant under
ESO4. Given the proposal would not effect the two trees protected
under the ESO4, the proposal achieves an acceptable outcome under
this overlay.

47 The land
is also affected by the SLO1 which applies to 'watercourse
environs'. The statement of nature and key elements of
landscapes is:

The areas covered by this overlay are part of, or
are directly adjacent to, significant landscapes, which consist of
substantial areas of open space, golf courses, wetlands, vegetation
and other natural habitat along the Yarra River and lower reaches
of the Plenty River. Such landscapes provide extensive views and an
opportunity for a sense of remoteness in the valleys of the
watercourse with only limited intrusion of built forms. Some areas
consist of lower density housing where the landscape
predominates.

48 Landscape
character objectives include:

To protect areas along watercourses and their immediate
environs from visual intrusion caused by the inappropriate siting
or appearance of buildings and works.

To encourage development in keeping with the character and
appearance of the area.

To protect and enhance a sense of remoteness in the valley of
the watercourse.

49
Decision guidelines at Clause 4.0 of the SLO1 include:

Whether the location, bulk and appearance of the building or
works will be in keeping with the character and appearance of the
area.

Whether the location, bulk, outline and appearance of the
building or works will be in keeping with or enhance the vista when
viewed from the watercourse, its banks, nearby streets, adjoining
public open space, or from prominent scenic view points within the
watercourse environs.

The need to ensure adequate screening of buildings and works,
for example:

when viewed from the river or its banks, the outlines of
buildings on ridgetops are totally screened;

when viewed from within Metropolitan and State Park boundaries,
at least half of each building and structure is screened.

50 Banyule
Management submits that the proposal responds appropriately to this
interface. In particular, it relies on the Heritage Impact
Statement which, amongst other things, says that minimal views of
the subject land are available from the river flats given the
impact of the escarpment and trees obscuring long range views. The
statement also says that the design takes advantage of the
topography of the site and setback sufficient not to overwhelm
neighbouring properties.

51 I consider
that care needs to be taken in placing too much weight on the
Heritage Impact Statement. This is because the statement was
produced for the purpose of considering the heritage impact rather
than the visual and environmental impact of the development having
regard to matters such as the policies at Clauses 11.04-8 and
12.04, and SLO1.

52 Although
Banyule Management asserts that the proposed buildings will be
screened from view by landscaping, I find the landscaping proposed
along the east boundary to be quite limited and insufficient.

53 At this
eastern interface, Units 2 and 3 have a minimum setback of about
2.6 metres from the property boundary. A setback of this width
would be regarded as relatively narrow and opportunity for adequate
landscaping limited in most middle suburban contexts, let alone one
where the land is at the interface with a significant river
corridor.

54 Further,
the landscape design involves the provision of extensive timber
deck areas which seek to accommodate existing trees, but again
limit opportunity for new planting. The landscaping provided is
appropriate for the space which has been allowed by the design, but
this appears to be an example of the landscape concept following
the design of the proposal.

55 The
proposal involves two double storey dwellings at the top of an
escarpment. While urban development exists along properties
abutting the escarpment, my observation is that dwellings on those
properties provide much greater setbacks. This is evident from
perusing the site context plan, aerial photography and walking
within the river flats area.

56 It
is also evident that the proposal is designed to provide
opportunities for views at ground level toward the flats. Designing
a building to take advantage of views is appropriate as it enhances
amenity. However, this should not be at the expense of providing an
appropriate setback and landscaping that will work toward largely
screening the visual impact of the proposed dwellings and providing
a soft interface with the river environs. In my view, a combination
of greater setback and better landscaping is required given the
intensity of development proposed in this case.

57 In
Watkins v Boroondara CC[6], a case involving the construction of a medium
density development on land adjacent to the Yarra River, the
Tribunal made the following observation:

The character of this reach of the river from
publicly accessible areas is overwhelmingly one of a naturalistic
and vegetated landscape setting. While buildings are present these
are not the dominant feature. It is the vegetation, particularly in
the foreground and middle-ground together with the river and the
dramatic landform which rises steeply on the east bank that capture
the viewer's attention. Whilst there are visual clues to the
corridor's urban context, including glimpsed views of dwellings
albeit with substantial river setbacks and boating infrastructure
closer to the river's edge, the environment is primarily
experienced as one of remoteness from this urban context.

58 In my
view, the same observation applies here. I accept that the context
and relationship between the river and the proposed dwellings is
different to what was proposed in Watkins, however,
the flats present an unquestionable sense of remoteness given their
expansive open areas. Urban development is visible at the top of
the escarpment, and it is clear that the flats have an edge with an
established urban area. However, existing development is not
intrusive, and the setback from the escarpment contributes to
this.

59 What is
proposed is out of keeping character and appearance of the area,
conflicting with the pattern of development, in terms of setbacks
to the escarpment. It would set an inappropriate benchmark for
development to be allowed as close to the edge of the escarpment as
proposed. I therefore find that the proposal does not respond in an
appropriate way to the nature and key elements of the landscape as
well as the landscape objectives of SLO1. Nor does it achieve an
outcome that is consistent with the strategies at clause 11.04-8.
This finding alone warrants rejection of the proposal.

60 The second
area of environmental sensitivity relates to the loss of trees and
understorey having regard to the land's ecological values. The
proposal involves the removal of both native and exotic trees as
well as understorey planting which has regenerated over the former
car park area. Mr Kern expresses the view that development area
presents itself as a woodland habitat with a mixture of indigenous,
native and exotic trees and shrubs, understorey cover, rocks and
logs. He says that the vegetation is likely to be of local
significance supporting local birds and mammals such as possums and
possibly reptiles.

61 The loss
of this vegetation goes to the ecological values of the site which
is located adjacent to the Banyule Flats and Yarra River
Corridor.

62 While I
accept that there would be some loss of habitat, I note Mr Kern's
evidence that this '…..is not be an overly significant impact on
its own but could possibly be one small part of an incremental loss
of habitat along a significant habitat corridor over time.'[7]

63 The land
is of limited ecological value. The part of the land where the
townhouses are proposed was developed and used as a car park
associated with the use of the homestead as an art gallery.
Although trees planted by the former owner of the land remain, so
do remnants of the former car park. Understorey planting plays a
fundamental role in providing habitat. No significant work has been
undertaken to restore the understorey. Further, much of this site,
particularly to the rear and north of the homestead is clear of
significant vegetation. In addition, the land is clearly enveloped
by urban development on three sides. Such development contributes
to the degradation of environmental values.

64 In
fairness, Mr Kern acknowledged that the ecological significance of
the land is not high given its condition and context, and noted
during his evidence that a large River Red Gum [Tree 17] located
outside the land's east boundary, is the most significant
environmental asset to be protected.

65 In my
view, given the context and condition of the land, it would be
unreasonable to refuse a permit on ecological grounds. The
appropriate approach here is to off set losses as provided for
under the NVF.

66 This
brings me to the third of the three areas of sensitivity, the
removal of trees.

67 In coming
to my conclusions as to whether the extent of tree removal is
reasonable and whether adequate steps have been taken to protect
tress to be retained, I have taken into account the evidence of the
two arborists, Mr Lewis for the Council and Mr Simonsen for Banyule
Management.

68 While
respondents such as Ms Crone suggest that all the trees should be
retained, I do not accept this view. In considering the merits of
proposals like this, an assessment must be made as to the
environmental value of the trees. This assessment should not just
be limited to the visual impact, but also the appropriateness of
the species having regard to the environmental values of the area.
For example, Ms Crone submits that the sugar gums should be
retained, however, Mr Lewis, the arborist called by the Council,
supports their removal as they are an environmental weed.

69 In
considering proposals like this, it is often tempting to seek to
retain as many of the mature trees as possible simply to limit
change and to provide an instant filter of vegetation. This
approach is acceptable if the trees in question are appropriate
species, display sufficient health and good structure; and have a
reasonable life expectancy. However, in some cases, it is
appropriate to remove trees and install new planting which
complements the new development and will contribute to its
appearance in the medium to long term.

70 I have no
difficulty with the removal of the trees identified as having low
retention value. There can be a legitimate difference of opinion
with respect to the value of some others. In this case, it seems to
me that the key area of dispute between the arborists relates to
whether sufficient measures are taken to protect trees are to be
retained. In particular, Mr Lewis asserts that the proposed
development intrudes excessively into Tree Protection Zone [TPZ] of
several trees, essentially more than the 10 per cent allowed under
AS4970-2009. He also expresses concern about the provision of
decking around some trees and the proximity of some trees prone to
limb drop adjacent to secluded open space areas. He suggests that
future residents will put pressure on the Council to approve the
removal of such trees.

71 The
consideration of this issue is not black and white. While
AS4970-2009 says that encroachments of up to 10 per cent into TPZs
are acceptable, that does not mean that this is the only way that
trees may be retained. For example, while an elevated deck may
intrude within the TPZ more than 10 per cent, it may be supported
by a limited number of piers which, by their nature, require the
removal of less root mass compared to a 10 per cent loss allowed
under AS4970-2009. The deck may also prevent or reduce soil
compaction around trees. I would think that provided the deck is
elevated, does not require cutting through major roots and allows
water to permeate into the root zone, an acceptable outcome could
be achieved. By and large, I find the measures taken to protect
trees are reasonable and accept the evince of Mr Simonsen. However,
I agree with Mr Lewis that tree retention should be managed under
the supervision of a qualified arborist should development proceed
on this part of the site.

72 I consider
that concerns raised by Mr Lewis about the proximity of deck area
to Tree 17 to be a valid. Any redesign should setback formal
secluded open space areas, such as decks and pools away from this
tree.

Is the proposed development respectful of the neighbourhood
character?

73 Concerns
were raised by both the Council and respondent objectors about the
proposal's appropriateness having regard to neighbourhood character
considerations. The Council submits that the contemporary styling
of the design, particularly the flat roof form, is appropriate as
it is consistent with the geometric form of the homestead and
reduces building bulk. However, the Council considers that greater
front and side setbacks should be provided to allow for the
retention of existing trees. Its main concern with respect to the
proposal is the response to the eastern edge of the land, where the
double storey form of Units 2 and 3 extends well past the rear wall
line of the neighbouring property at 58 Buckingham Drive. The
Council submits that the extent to which the townhouses extend to
the east boundary will be intrusive on the 'backyardscape' or green
spine along the top of the escarpment created by the setbacks of
other dwellings on Buckingham Drive.

74 Other
respondents are concerned about the scale of development as well as
impacts on the streetscape.

75 State and
local planning policy as well as the objectives of clause 55 call
for a development outcome that is respectful of the neighbourhood
character. On many occasions, various divisions of the Tribunal
have found that the notion of respecting the neighbourhood
character does not mean more of the same, no increase in density or
for new development to replicate the appearance buildings that
already exist. The notion of respecting neighbourhood character
must embrace the change envisaged by other planning polices
including those which support the provision of additional dwellings
in established urban areas.

76 Clause
22.02 sets out the residential Neighbourhood Character Policy.
Under the policy, which was recently amended[8], the land is within garden Suburban Precinct 2.
Amongst other things, the statement of preferred future
neighbourhood character calls for:

Designing new infill dwellings and extensions in a scale and
architectural style that is sympathetic with existing dwellings in
the precinct.

Maintaining the overall one or two storey scale of the
dwellings outside accessible areas.

Ensuring the scale of new dwellings in the accessible areas is
sympathetic to the existing dwellings on neighbouring properties
and the surrounding precinct.

77 In those
parts of the precinct outside 'Accessible Areas'[9], the character statement notes:

These areas will protect and enhance the garden
suburban character of the precinct with an emphasis on protecting
trees and creating new opportunities for vegetation throughout
sites. They will provide for a mix of well-designed single
dwellings and medium density dwellings in garden settings, with
space around and between dwellings to create an attractive, treed
landscape setting.

78 I agree
with Mr Milner's observation that the there is an eclectic mix of
residential styles with a consistent one to two storey scale in the
immediate neighbourhood. I also agree with his view that the
retention of the large hedge along the frontage, the two storey
scale of Unit1 and limiting the number of crossovers to Buckingham
Drive all work toward an outcome that is acceptable from a
streetscape viewpoint. I have no difficulty with the front setback
which provides a reasonable response to the angled street alignment
in this case.

79 In my
view, the 'Achilles heel' of this proposal from a neighbourhood
character perspective relates to the extension of the built form
close to the east boundary. As noted by the Tribunal in Watkins
case[10]:

It has been often held by the Tribunal that the
features that define an area's character are not just limited to
the streetscape. Rather, the features around which a development is
sited including the space at the sides and rear are relevant, in
what is often termed the "backyard-scape".

80 Earlier in
these reasons, I found the proposal's response to the river
corridor unacceptable given its proximity to the rear boundary,
noting the inconsistency with the pattern of development at the
rear of Buckingham Drive properties which provide much larger
setbacks to the escarpment.

81 I find
that the proposal is unsatisfactory from a neighbourhood character
viewpoint having regard to the proximity of development to the rear
boundary. The proposal involves relatively large two storey
dwellings which extend into the line of consistent setbacks created
by existing dwellings. Considered in the context of the land's
adjacency to the Banyule Flats, this is not an appropriate
approach.

82 I put to
Mr Milner the proposition that dwellings at the rear of this land
be setback from the escarpment a distance which is similar or
commensurate with that of other dwellings on Buckingham Drive. He
expressed the view that a development positioned on the land in
this way, together with landscaping would be much closer to
achieving an acceptable outcome. I agree with him. The proposal is
also refused for failing to respond appropriately to this aspect of
the neighbourhood character.

Will the proposed development result in unreasonable impacts on
the amenity of neighbouring residential properties and the area
generally?

83 The
Council and objectors also raise concerns about the impact on
amenity. I will set out my findings with respect to the matters
they raise.

Visual bulk

84 Ms
Trasancos and Mr Kolodziejczk, the residents of the dwelling at 58
Buckingham Drive raises concerns about the visual impact of the
proposed development on the amenity of their property, particularly
the outlook to the rear.

85 The rear
of the dwelling at 58 Buckingham Street offers superb outlook
toward the river flats. The rear open space area is improved with
decks and swimming pool. It is an area that provides a high level
of amenity and relatively free from obstruction from buildings on
neighbouring properties which have similar setbacks.

86 The
presentation of a large double storey dwelling directly adjacent to
the rear open space area will bring about substantial change and
greatly diminish the amenity of the rear secluded private open
space to an unacceptable level.

Overlooking:

87 Ms
Trasancos and Mr Kolodziejczk raise concerns that the proposal will
result in unreasonable potential for overlooking of their property,
thus reducing amenity by loss of privacy.

88 The
proposed development is set on sloping terrain. The land falls
toward the south. The property at 58 Buckingham Street is set on
lower terrain. To provide usable flat surfaces for open space,
decks elevated above ground level are proposed for Unit 2. This
gives rise to the potential for overlooking over boundary fences
into backyards.

89 The
objective relating to overlooking, as set out at Clause 55.04-6
is:

To limit views into existing secluded private
open space and habitable room windows.

90 While the
objective seeks to limit views, it does not equate to an
expectation that there would be no potential for overlooking
whatsoever. It must be remembered that in this environment, the
ability to see out and take advantage of views available is
desirable from an amenity viewpoint. Provided that reasonable
measures are taken to prevent opportunities for direct views into
sensitive areas, this would be sufficient to achieve
compliance.

Overshadowing:

91 While the
proposed development would cast additional shadows over 58
Buckingham Street, these would be well within the parameters
allowable under Standard B21 at Clause 55.04-3. Shadow impacts are
acceptable.

North facing windows:

92 Based on
my understanding of the position of north facing windows on the
dwelling at 58 Buckingham Street and the relationship with the
proposed development, it seems to me that the compliance with
Standard B20 is achieved as the windows are opposite open space
areas rather than southern walls.

Traffic:

93 Applying
readily accepted traffic generation rates for dwellings in this
type of location, the proposed development could be expected to
generate between 24 and 30 vehicle movements per day. In a
residential situation, about 10 per cent of movements occur in both
the morning and afternoon peak hours. This equates to about 3
movements in each peak hour. While Buckingham Drive is a quiet
residential street, the amount of additional traffic is minor and
barely discernable.

94 I do not
accept that the proposal presents traffic difficulties given the
amount of additional movements and the context.

Parking:

95 The
proposal provides for two car parking spaces per dwelling. This
meets the requirements of Clause 52.06 and is acceptable.

Conclusion:

96 I accept
that the subject land presets some opportunity for increased
development over the southern part of the land. However, the land
is subject to heritage and environmental constraints. In this case,
the proposal fails to respond appropriately to its context. I
suspect that too much development is proposed over the southern
part of the land. A reduced development which provides for an
appropriate setback from the homestead and escarpment boundary,
suitable landscaping and does not present unreasonable visual bulk
to the rear open space of 58 Buckingham Drive is required.

97 I will
affirm the Council's decision. The permit application is
refused.

S. R. Cimino

Member

[1]
I have
considered all submissions presented by the parties although I do
not recite all of the contents in these reasons.

[2] Refer to Refusal to Grant a
Permit issued by the Banyule City Council

[3] As acknowledged in
paragraph 25 of submissions presented on behalf of Banyule
Management

[8] Amendment C68. parties were
aware of the impending amendment. They indicated that the proposed
provisions for the precinct are similar to those in previously in
place and they did not seek to make further submissions on this
matter.